Thursday, April 22, 2021

New Jersey remains the second worst state for new Covid infections per 100,000 people (268.7), trailing only Michigan (449.2)

The CDC post as of Thursday, April 22, 2021 12:30 PM ET. still places New Jersey as the second worst state in the nation in new Covid cases per 100,000 at a number of 268.7, which is more than twice the national average of 132. Michigan, the worst state, is at 449.2. For reference below, note that North Dakota is at 131.9 (basically right at the national average) and South Dakota is at 128.6. Montana is at 84.8.

There is some talk of people who will decline to get the vax. The New York Times, on April 22 [below], correlated those declining to be VAXd with those who were Trump voters. One notes that the areas with relatively higher non-VAX fractions turn out to be in those states with about average, or below average, Covid infection numbers. They also are in "Trump voter" states. The states with high Covid infection numbers, such as Michigan and New Jersey, are "Biden states."

There is some talk that the next obstacle will be to convince such people to get VAXd. In New Jersey, as of 22 April 2021, there are still issues with getting a VAX appointment at all [below]. The immediate question that might be addressed is "why" Michigan and New Jersey have such high Covid infections per 100,000 of population.

One might think these issues would be newsworthy in the local New Jersey newspapers. In fact, the cover of the April 22, 2021 of the Courier News. was about whether or not high schoolers could dance at the 2021 prom. [Recall Lee Ann Womack: And when you get the choice to sit it out or dance] See also IPBiz of 15 April 2021,
New Jersey remains as the third worst state in Covid cases per capita; nationwide U.S. at 146.7 cases per 100,000

See also Talal Ansari in Wall Street Journal, 21 April 2021: Michigan’s Spring Covid-19 Surge Is Close to Previous Pandemic High

Roni Caryn Robin in NYT, An unvaccinated worker set off an outbreak at a U.S. nursing home where most residents were immunized. including text: "The outbreak involved a variant of the virus that has multiple mutations in the spike protein, of the kind that make the vaccines less effective. Vaccinated residents and health care workers at the Kentucky facility were less likely to be infected than those who had not been vaccinated, and they were far less likely to develop symptoms. The study estimated that the vaccine, identified as Pfizer-BioNTech, showed effectiveness of 66 percent for residents and 75.9 percent for employees, (...) In the Kentucky outbreak, the virus variant is not on the C.D.C.’s list of those considered variants of concern or interest. But, the study authors note, the variant does have several mutations of importance: D614G, which demonstrates evidence of increased transmissibility; E484K in the receptor-binding domain of the spike protein, which is also seen in B.1.351, the variant first recognized in South Africa, and P.1. of Brazil; and W152L, which might reduce effectiveness of neutralizing antibodies."

Wednesday, April 21, 2021

New Jersey still number 2 in new Covid cases per 100,000; number of cases increased!

New Jersey retains its ranking as the second worst state in the nation for new Covid infections per 100,000, and the number is UP relative to the previous report. New Jersey with 25,963 new cases (over last 7 days) has a fraction of 292.3 new cases per 100,000, which is up from the previous count of 285.6. Michigan leads the nation with 519.8, with the national average being 140.6.

A front page article in the 21 April 2021 issue of the Newark Star-Ledger entitled "IS N.J. finally beating back Covid-19?" begins "New cases are dropping..." Well, not exactly. Of course, as the pool of people who never had Covid (and/or who won't get Covid because of VAX) diminishes, yes, the fraction of "new cases" will necessarily drop, because the number of people who could be in that category diminishes.

The Murphy target for vaccinations is 70% (4.7 million people) by the end of June 2021. One notes that is still hard to get a vaccination at CVS.

First two pages from the CDC; third from CVS; fourth from Star-Ledger link: cdc: link: cvs:

CAFC addresses a "“Request to Change the Real-Party-in-Interest from Third-Party Requestor" and FRAP 43 in Mojave Desert case

The outcome was that the PTAB got the case wrong:

We therefore conclude that Mojave is the successor-ininterest to U.S.A. Dawgs, that it has standing to pursue this challenge to the ’789 patent, and that the Board erred in not substituting Mojave for U.S.A. Dawgs as the thirdparty requester during the inter partes reexamination.

Under these circumstances, we think that no useful purpose would be served by remanding to the Board to add Mojave as the requester and that the appropriate course is to grant the motion to substitute on appeal pursuant to Rule 43(b) of the Federal Rules of Appellate Procedure. See Mullaney v. Anderson, 342 U.S. 415, 417 (1952);13 see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 833–34 (1989) (reaffirming Mullaney); Carlton v. Baww, Inc., 751 F.2d 781, 789 (5th Cir. 1985) (permitting amendment to a pleading at the appellate court because “it appear[ed] plainly from [the] record that jurisdiction exists,” and as a result, “it best serve[d] the interests of justice to grant the motion for leave to amend [in the appellate court], without requiring a perfunctory remand for that purpose” (citations omitted)).

Of the motion to substitute:

The motion to substitute is made pursuant to Rule 43(b) of the Federal Rules of Appellate Procedure, which provides that, “[i]f a party needs to be substituted for any reason other than death, the procedure prescribed in Rule 43(a) applies.” Fed. R. App. P. 43(b).6 Substitution [under Rule 43(b)] may . . . be necessary when a party is incapable of continuing the suit, such as . . . when a transfer of interest in the company or property involved in the suit has occurred[] or when the focus of the litigation has shifted, making another entity the real party in interest. 21 James W. Moore et al., Moore’s Federal Practice – Civil § 343.12 (2020).

Of a "protective notice of appeal":

Crocs also argues that Mojave failed to file a notice of appeal from the Board’s decision. Mojave could not file a notice of appeal because it had not been added as a party by the Board to the inter partes reexamination proceeding. Under Nevada law, however, U.S.A. Dawgs retained the ability to file a protective notice of appeal12 and did so on November 8, 2019. That was sufficient to confer jurisdiction on this court. Other courts have apparently reached similar conclusions. See, e.g., Barger v. City of Cartersville, 348 F.3d 1289, 1291–93 (11th Cir. 2003) (determining that the notice of appeal filed by transferor was sufficient), overruled on other grounds by Slater v. U.S. Steel Corp., 871 F.3d 1174 (11th Cir. 2017); ELCA Enters., Inc. v. Sisco Equipment Rental & Sales, Inc., 53 F.3d 186, 190–91 (8th Cir. 1995) (permitting party denied substitution before the district court to appeal despite transferring all interest in lawsuit).

Tuesday, April 20, 2021

Hard for poor people to get vaccinated in New Jersey

One IPBiz reader asked why IPBiz keeps mentioning the absence of Covid vaccine appointments at CVS. There are several reasons.

1. In the New Jersey system of vaccine registration, one had to register at more than one hundred different sites. There is no central system that allows one to look for the closest vaccination site and book an appointment there. At an earlier time, the "official" New Jersey system only covered about 8% of the sites, and one still had to deal with the individual site (among the 8%) to get an appointment.

2. In theory, the CVS system, which in principle allowed vaccinations at many, geographically separated, sites, was a good bet. One could get a VAX appointment "close to home." Governor Murphy praised the CVS system.

3. In practice, getting an appointment at a nearby CVS store proved illusory.

There is another problem. Without the availability of vaccination sites near population centers, poorer people could not get vaccinated. For example, in Somerset County, the main VAX site was at Raritan Valley Community College, which is located a distance from the population centers of Somerset County. Moreover, to get a VAX, one had to ARRIVE in a car, AND GET VACCINATED in a car. That is a problem for people without access to a car.

Some of the issues are covered in a Newark Star-Ledger article on 20 April 2021. Note that people without ready access to the internet (independently of whether they were, or were not, internet savvy) were at a big disadvantage.

Appellant Cerner loses at CAFC, failed to present its main argument to the Board

The CAFC decision in Cerner begins:

This is not the first time issues presented on appeal do not mirror directly those presented to the lower tribunal. Such is the case here. Because we conclude that the claim construction debate on which this appeal initially turns was never presented to the Patent Trial and Appeal Board (“Board”) and that the Board had substantial evidence to support its assessment of the prior art disclosure at issue, we affirm the Board’s patentability determination.


The problem for Cerner is that it never asked the Board to construe the term “portion” in the storing clause of claim 1 and the Board did not do so. Cerner and Clinicomp asked for a number of terms to be construed and the Board thoroughly analyzed each of the identified claim term

Instead, the parties and the Board proceeded on the assumption that the terms “partition” as used in the specification and the term “portion” as used in the claim were interchangeable and that they had a common ordinary meaning to one of skill in the art. As the Board described it, the two words were distinct, but it was a “distinction without a substantive difference.” J.A. 85. The Board’s finding on this point was not persuasively debated below, and with good reason. It is supported both by the plain language of the ’647 patent specification and by the testimony of both experts. Quite simply, the Board did not decline to construe any claim term presented to it and did not misunderstand the parties’ requests for claim construction.

The idea of "moving the goalposts" comes up in footnote 2:

As the Board noted, Cerner’s contention that claim 1 did not actually require “partitioning” was a belated attempt to move the goalposts— one without evidentiary support.

New Jersey still the second worst state in terms of new infections per 100,000, but infections are dropping each day

The national average for new Covid infections per 100,000 (averaged over the last 7 days) is now 140.7, with New Jersey still the second worst state in the nation at 285.6, trailing only Michigan at 485.2. Getting appointmens for vaccinations is difficult, but not impossible.

Included below are CDC data for infections, both normalized per 100,000 of people and absolute. To interconvert, one divides ((the number infections) by (state population)) and multiplies by 100,000. Thus, roughly, for New Jersey 25,363/8,970,000 X 100,000 is 282.

Monday, April 19, 2021

New Jersey remains the second worst Covid state in terms of new infections per 100,000 people on April 19, 2021 the day vaccine eligibility expands

With the national average at 142.2 new Covid infections per 100,000 population, New Jersey at 288.2 (more than twice the national average) remains as the second worst state in the nation, trailing only Michigan (533.7). Monday, April 19, 2021 is the day that vaccine eligibility expanded in New Jersey, which event made the first page of the Newark Star Ledger. However, vaccine appointments remained hard to obtain (see CVS availability below).

Covid data from the CDC on 19 April 2021

Sunday, April 18, 2021

As of April 18, 2021, New Jersey rises to number 2 ranking for worst Covid infections per 100,000 population

With the U.S. average for Covid infections at 142.2 infections per 100,000, New Jersey, at 288.2 was second in the nation, trailing only the state of Michigan ( 533.7 ). Pennsylvania at 270.6 was number 3. Florida was at 198.4. [See]

Of previous coverage, from NBC5 news on 6 April 2021: New York, Michigan, Florida, Pennsylvania and New Jersey together reported 44% of the nation's new COVID-19 infections, or nearly 197,500 new cases, in the latest available seven-day period, according to state health agency data compiled by Johns Hopkins University. Total U.S. infections during the same week numbered more than 452,000. The heavy concentration of new cases in states that account for 22% of the U.S. population has prompted some experts and elected officials to call for President Joe Biden’s administration to ship additional vaccine doses to those places. So far, the White House has shown no signs of shifting from its policy of dividing vaccine doses among states based on population.


The Newark Star-Ledger ran a page one article on 18 April 2021 titled "Hesitancy over vaccines low in N.J," which began with the text: "Across the United States, vaccinations are opening for any adult who wants one, with a goal of inoculating enough people to allow for a return to normalcy." But as the shots become available to everybody, will everybody roll up their sleeves for them?"

Being WILLING to get vaccinated is one thing; getting an appointment to actually get vaccinated is something else.

Looking at the CVS vaccination website [ ], one sees on April 18 that most (but not all) sites are FULLY BOOKED. A sample page follows.

As to New Jersey's rank as second worst in the nation:

Friday, April 16, 2021

On April 16, 2021, New Jersey remains number 3 in Covid infections per 100,000 people at 282.5, with the national average at 146.3

Although New Jersey's Covid infections per capita has been dropping (now at 282.5 ), it is still the third worst in the nation, trailing only Michigan (538.1) and Rhode Island ( 302.6 ) and far in excess of the national average of 146.3.

The April 16 issue of the Newark Star Ledger had a small article on page A3. The article did NOT mention New Jersey's number 3 position in Covid cases per 100,000. It did not that the rate of transmission (Ro) remained at 0.92 on Thursday, April 15 down steadily form 1.07 on April 5. Governore Murphy was quoted: "Better days are coming folks. I know this for sure."

Of the publication by the Courier-News on April 15, 2021 of the "healthiest" counties in New Jersey, note that Bergen County ranks number one in Covid infections and Middlesex County number three in Covid infections. One might think that Covid risk enters into assertions of "healthiest" !!!

Thursday, April 15, 2021

New Jersey remains as the third worst state in Covid cases per capita; nationwide U.S. at 146.7 cases per 100,000

Although dropping in new Covid cases per 100,000 to the number 287.2 (about twice the national average), New Jersey is the third worst state in the nation on April 15, 2021, lagging only Michigan ( 551.6 ) and Rhode Island (304.5 ).

Radio station 101.5 talked about the new normal for high school students in which a New Jersey prom, if held at all, might occur without dancing allowed.

According to an article in the Courier News, Bergen and Middlesex are the state of New Jersey's 4th and 5th healthiest counties. More on that later